Annual Report 2022-23

This report sets out the work of HM Inspectorate of Prosecution in Scotland (IPS) between 1 April 2022 and 31 March 2023. It covers a period when the Crown Office and Procurator Fiscal Service (COPFS) continued to contribute to efforts to reduce the backlog of cases in the justice system caused by the pandemic. The aim of the justice agencies is to return the outstanding number of cases to levels more akin to those seen pre-pandemic by March 2024 for summary cases, March 2025 for High Court cases and March 2026 for solemn cases in the Sheriff Court.

In total, there were 27,406 trials scheduled at the end of March 2023, a 37% reduction compared to the peak of 43,606 in January 2022.^[1] The average time between pleading diet and evidence-led trial in a sheriff summary case, for example, was 34 weeks at the end of June 2023, down from a high of 53 weeks in April 2022.

While progress is clearly being made, cases awaiting trial involve victims, witnesses and accused persons whose involvement with the justice system is more protracted than it should be. Extended case journey times place additional demands on COPFS. It must keep victims and witnesses updated throughout and manage the increased risk that they may disengage from the process as time passes. These additional demands are particularly challenging for COPFS when improving the frequency and quality of its communication with victims and witnesses has been a recurring theme in our inspections, even prior to the pandemic.

The pandemic also resulted in a significant increase in COPFS's deaths investigations work. In 2020-21, the number of death reports received by COPFS increased by 44% from 10,921 to 15,739. The number of death reports received in subsequent years has remained high. In 2022-23, it was 14,147 – still significantly above pre-pandemic levels.^[2] In these cases, investigations require to be undertaken and there are families who must be kept informed.

To help COPFS respond to the pandemic, as well as other challenges such as the increasing complexity of casework and rising staff costs, its budget allocation was increased in 2022-23 to £180.9 million and in 2023-24 to £196.6 million. This additional funding is necessary not only for COPFS to meet the demands arising from criminal and deaths casework, but also to modernise and improve the service it provides, including through investment in digital transformation and upskilling its staff to become a trauma-informed workforce.

In 2023-24, COPFS expects 82% of its resource budget to be spent on staffing.^[3] This is a result of a deliberate strategy to invest as much of its available resource as possible in its staff and to reduce its non-staffing expenditure. In recent years, it has almost halved the proportion of its total spend on non-staff costs, including through effective procurement and digital efficiencies. However, there is more to be done.

Forensic pathology services

During the course of its investigations of sudden, suspicious and unexplained deaths, COPFS will sometimes require to instruct a post-mortem examination. Forensic pathology and mortuary services represent a significant non-staffing cost to COPFS – around 7% of total spend. While COPFS has a duty to investigate deaths, there is no duty on any other agency to provide forensic pathology services (although there are duties on local authorities and health boards to provide mortuary services). Instead, COPFS secures pathology services under various contracts from a range of providers across Scotland, including universities and the NHS. In light of the significant costs associated with these services, COPFS initiated a contractual audit in 2017. This highlighted a range of concerns about value for money, affordability, sustainability and contractual terms.

Since then, COPFS has been seeking improvements in contractual terms with the various providers. While improvements have been achieved, these have been incremental and ad hoc, rather than transformational. In the course of its work, COPFS has identified that its preferred model would be a national forensic pathology service. It considers this would provide consistency in service delivery across Scotland and would help it manage the significant financial and governance demands arising from the current array of contracts. However, there has been no wider impetus for a national service. In 2021, therefore, COPFS sought to procure three new regional contracts for pathology services. This procurement exercise was not successful (existing contracts were extended meantime). As a result, COPFS commissioned a Gateway Review of its forensic pathology and mortuary services programme of work which concluded that successful delivery appeared unachievable.

In light of the challenges encountered by COPFS in making further progress in this area, in late 2022, the Law Officers asked whether I might consider an inspection of COPFS's work on forensic pathology services. I committed to exploring the possibility. This involved reviewing a range of documentation and discussing the issues with key stakeholders, with a particular focus on determining what added value an independent inspection would bring.

It was clear to me that COPFS had carried out extensive work over several years in an effort to address its issues with pathology services. While it has made progress, it was also clear that it has not been able to achieve all that it would have liked, not least because securing new arrangements for forensic pathology services is not entirely within its control. This is of concern as, despite recent improvements, issues relating to value for money, affordability and sustainability persist. Recruitment and retention of pathologists, for example, is a particular challenge in some areas and poses risks to the service provided to COPFS.

From the information shared with me, the case for reforming arrangements for pathology services was evident. Forensic pathology is a critical public service, and serious consideration should be given to the optimal delivery model. However, this will require the input of not only COPFS, but others such as pathologists themselves, the NHS and the Scottish Government. Rather than reform being driven by COPFS, there is a need for a co-designed approach to securing a long-term vision for pathology services and to developing a strategic business case. COPFS should play a key role in this, but should not take the lead. Given the cross-sector nature of the work, that role would more appropriately fall to the Scottish Government.

Given my statutory remit is restricted to the operation of COPFS, I was concerned that an inspection by IPS may perpetuate the COPFS-centred nature of the work already carried out, thereby limiting its value. I was also concerned that we would gather no substantial further evidence in light of the considerable work already done, and that we would expend time and resource only to reach conclusions broadly similar to those of the Gateway Review. While the needs of COPFS so that it can fulfil its duty to investigate deaths is a key consideration in the design of pathology arrangements, a broader assessment of what is needed from pathology services is required, not least one that takes into account the needs and views of bereaved families.

I therefore concluded that an inspection by IPS was not appropriate at this time, but that this assessment could be revisited should COPFS continue to encounter difficulties in securing pathology services that meet its needs.

I highlight these issues here to draw further attention to the need for reform in this critical public service, so that value for money can be achieved while also ensuring that this service meets the needs of the justice system, bereaved families and the wider public.

Inspectorate activity in 2022-23

In 2022-23, IPS published two inspection reports and commenced work on a third. We published an inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These provisions regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials. This work continued the focus that IPS has had in recent years on how COPFS investigates and prosecutes serious sexual crime. We found that COPFS had responded swiftly to recent developments in case law, leading to a significant shift in how its staff manage section 275 applications. This shift will benefit complainers, ensuring that they are told when applications to lead sexual history or character evidence are made and that their views can be heard when applications are being determined. However, we also identified scope for further improvement in COPFS's approach to section 275 applications and made nine recommendations all of which are now being taken forward.

We also published a review of diversion from prosecution. In a previous annual report, I noted that one of my priorities upon being appointed HM Chief Inspector of Prosecution was to develop our approach to joint inspection and to collaborate more often with other independent scrutiny bodies to provide a broader view of key criminal justice issues. I am therefore pleased that our review of diversion from prosecution was carried out alongside our scrutiny partners, HM Inspectorates of Constabulary and Prisons and the Care Inspectorate. This allowed us to review the end-to-end diversion process, including from a policing, prosecution and justice social work perspective.

We noted an increased recognition among those agencies involved in diversion of the benefits of early intervention to address the underlying causes of offending and prevent further criminality, in line with the Scottish Government's Vision for Justice in Scotland. We found that diversion from prosecution was generally working well. However, we also found that there was scope to increase the use of diversion and to improve how it operates. We made 34 recommendations, all intended to support the agencies involved in diversion to plan and deliver diversion more effectively, to manage diversion efficiently across agencies, and to further increase the use of diversion while also maintaining confidence in its use as an appropriate response to offending behaviour.

Public confidence in diversion from prosecution is vital. In recent months, the use of diversion as a response to sexual offending has been called into question. In July 2023, the Lord Advocate announced a review of how prosecutors deal with diversion in cases of serious sexual offences such as rape. I welcome this initiative as a timely opportunity for the issues raised in our own review to be explored further and addressed.

During our review, we noted that accused persons (often those aged under 18) were on occasion diverted in relation to more serious offending, including domestic and sexual offending. In the cases we reviewed, we did not disagree with any of the decisions to divert the accused person, even when the alleged offending was serious. The decisions were appropriate given the circumstances of each case.

However, we detected uncertainty among some professionals in the justice system about whether diversion was an appropriate outcome in cases involving domestic or serious sexual offending. We were concerned that the processes for managing diversion from prosecution were designed for less serious offending, and recommended that those processes be strengthened and robustly monitored in cases involving more serious offending. We also noted that the possibility of diversion for more serious offending needs to be taken into account when allocating resources to diversion services and in the training of justice social work staff who deliver diversion interventions. There was also a need for improved communication between diversion agencies – including COPFS and justice social work – in cases involving more serious offending.

We also highlighted the need for a greater focus on the needs of complainers in cases where the accused person is diverted from prosecution. Currently, diversion is focused on the needs and circumstances of the accused person and providing them with support to address the underlying causes of their behaviour. While the impact on the complainer is taken into account by the prosecutor when they decide whether to offer diversion, we highlighted the need to improve communication with complainers and for greater clarity on the consideration to be given to complainers during the diversion process.

Also in 2022-23, we began work on an inspection of the prosecution of domestic abuse cases at sheriff summary level. A key objective of this inspection will be to understand how victims and child witnesses experience the prosecution process, to highlight good practice and to identify areas for improvement. Data published by the Scottish Courts and Tribunals Service indicates that 95% of domestic abuse cases were heard at sheriff summary level,^[4] meaning we are focusing our attention on the service provided by COPFS to the majority of domestic abuse victims. This is a significant piece of work and the inspection will likely continue throughout 2023.

This year, we also assessed the progress made by COPFS in implementing recommendations made in previous inspections relating to the prosecution of young people, Fatal Accident Inquiries and Victims' Right to Review. Our findings are set out in this annual report. We also launched a new website to positive feedback (visit the website at www.prosecutioninspectorate.scot). In just a few months, the new website has already resulted in a noticeable increase in stakeholder engagement in our work. I would like to acknowledge the contribution of Iain Gray, our Legal Inspector, whose hard work and technical know-how helped deliver this project.

HM Inspectorate of Prosecution is made up of a small number of dedicated staff who work hard to deliver the scrutiny activity outlined above. I am grateful for their commitment and support. I also thank our scrutiny partners and all those within COPFS and across the justice system who have contributed to our work over the year. Their efforts, experiences and insights are invaluable in shaping our work.

Laura Paton

HM Chief Inspector of Prosecution in Scotland

September 2023